An amendment from the 1870s that was once used to target Catholics is now being invoked in Georgia once again to challenge a scholarship program allowing children to attend religious schools.
And the use of the amendment is deeply unacceptable, religious freedom advocates say.
“Georgia’s program is helping low-income children. It would be a terrible mistake to use a bigoted law from the nineteenth century to hurt schoolchildren today," said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which filed an amicus brief supporting the state’s program in December.
“This law is a ghost from Georgia’s past. It shouldn’t be dredged up to haunt education in Georgia today," Windham continued.
In 2008, Georgia established the GOAL Scholarship Program, funded by voluntary taxpayer donations, for students to attend private and religious schools. The donations are tax-deductible dollar-for-dollar up to a certain amount – $1,000 for single filers, or $2,500 for a married couple filing jointly.
The program helps children of low-income families attend private schools they otherwise might not be able to afford, Becket Fund says.
In January of 2016, the state hit its cap in taxpayer donations for private school scholarships on the first day, for the second year in a row, the Atlanta Business Chronicle reported.
However, opponents have challenged that program in court on the grounds that it violates the state’s constitution. The case is currently before the state’s Supreme Court.
The constitutional clause in question is the state’s version of the Blaine Amendment, which dates all the way back to the 1870s.
Named after then-Speaker of the House James Blaine, the Blaine Amendment was originally intended to bar Catholic schools from receiving state funding, instead of the largely Protestant public school system. It was part of the anti-Catholic fervor of the time.
Efforts to pass it at the federal level failed in 1875 but around 41 states – including Georgia – have their own versions of the Blaine Amendment, Diana Verm, legal counsel for the Becket Fund, told CNA.
Georgia’s constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution."
The amendment was “passed at a time of overwhelming animus toward Catholics," Verm said, and it was passed with the intent to discriminate against Catholics.
Today, it is invoked on secularist grounds in many states to prohibit religious institutions – schools, charities, and hospitals – from receiving government funds. Its supporters claim that such funding violates the Establishment Clause of the First Amendment which forbids Congress from making “no law respecting an establishment of religion."
State laws should be “neutral towards religion" Verm argued, and should not actively discriminate against religious institutions.
In 2000, the U.S. Supreme Court, in a four-person plurality opinion in Mitchell v. Helms, stated that “Consideration of the [Blaine] amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’"
“In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it," the justices continued. “This doctrine, born of bigotry, should be buried now."